Mr Mohamud went to a petrol station operated by Morrisons supermarket and, after checking the tyre pressure on his car, entered the kiosk to ask the Morrisons employee (Mr Khan) if it was possible to print off some documents he had stored on a USB stick. Khan responded abusively, using racist language towards Mr Mohamud (who was of Somali decent) before following him onto the petrol station forecourt and into his car. Mr Mohamud was subjected to a violent attack when Khan entered his vehicle, which included Khan punching Mr Mohamud in the head and subsequently kicking him while he was curled up on the forecourt floor after leaving his vehicle. The judge at first instance found that Mr Mohamud was in no way at fault for the unprovoked attack which was described as “brutal”. Mr Mohamud alleged that the head injury he suffered as a result of the attack caused epilepsy and further that he suffered psychological injury and soft tissue injuries. At the time of the assault it was also found by the judge at first instance, that Khan was being encouraged to return to the kiosk by his supervisor and that Khan had made the positive decision to leave the kiosk himself, for no good or apparent reason.

Law

It was held at both first instance and the Court of Appeal that the correct test for vicarious liability is a two-stage test following the case of Lister v Hesley Hall Ltd[2001] UKHL 22. The first limb of the test is that the relationship between the primary wrongdoer and the person alleged to be liable must give rise to the possibility of vicarious liability (which will be satisfied in an employment relationship) and, secondly, that there must be a sufficiently close connection between the wrongdoing and the employment. This would have to be such that it was fair and just, to hold that there was employer’s vicarious liability.

Decision at first instance

The Recorder at first instance found that there was no vicarious liability so as to make Morrisons liable for Khan’s actions. He found that the test for vicarious liability failed at the second stage of the two-stage test. The required close connection between the employment and the wrongdoing was not satisfied by the mere fact that the incident involved an employee, took place on an employer’s premises and the fact that the employee was required to interact with customers. The Recorder found that Khan had acted purely independently, for his own reasons which were beyond the scope of his employment.

Court of Appeal

Mr Mohamud appealed the decision on the basis that an assistant should be regarded as representing an employer’s brand standards and that, in a customer facing role, an employee was likely to need to respond to a variety of enquiries, some of which may be difficult. Mr Mohamud also argued that it was just and fair to be able to claim against the employer. It would act as a deterrent to others and the employer was likely to have insurance to cover any claims.

The Court of Appeal disagreed, finding that although it would indeed be just for Mr Mohamud to claim damages, the test was not solely what was fair and just. The critical factor was the nature of the employment and the connection between the employment and the tort.

Lord Justice Treacy reviewed cases in which a sufficiently strong connection between the employment and the tort had been found, leading to a potential for vicarious liability. These included the case of Fennelly v Connex South Eastern Ltd[2000] EWCA Civ 5568 in which a ticket inspector put a passenger in a headlock, following an intervention performed as part of his duty. Here emphasis was placed on the inspector’s statutory duty to interfere with a passenger’s progress if they failed to produce a ticket. Similarly, in the cases of Vasey v Surrey Free Inns Plc [1996] PIQR 373 and Mattis v Pollock (t/a Flamingos Nightclub)[2003] EWCA Civ 887 (both of which involved doormen) there was found to be a sufficiently close connection to the employment and the tort, due to the duty of a doorman to keep order and discipline using “force if need be”. This “was a decisive factor” in finding a sufficiently close connection. The judge found that in these cases the employee was given duties involving a “clear possibility of confrontation and the use of force or was placed in a situation where an outbreak of violence was likely”.

This was in contrast to the present case and cases such as Vaickuviene v J Sainsbury Plc[2013] CSIH 67 in which a supermarket shelf stacker stabbed another to death in circumstances driven by a personal racial hostility. Here the court found the mere bringing together of persons as employees was not enough to impose vicarious liability for the actions of the employees.

The court held that while it felt sympathy for Mr Mohamud, there was no element which could bring the current case within the close connection test, so vicarious liability could not be found. In his closing remarks whilst dismissing the appeal (by unanimous consent), Lord Justice Treacy quoted an observation made by Lord Neuberger in the case of Maga v Archbishop of Birmingham[2010] EWCA Civ 256:

“I accept that the court should not be too ready to impose vicarious liability on a defendant. It is, after all, a type of liability for tort which involves no fault on the part of the defendant, and for that reason alone its application should be reasonably circumscribed.”

Supreme Court

The appeal was heard by Lord Neuberger, Lady Hale, Lord Dyson, Lord Reed and Lord Toulson on the 12 and 13 October 2015. The issue for the court to consider was, again, the test for vicarious liability of an employer for his employee’s violence towards a customer. A full case comment will be posted on this blog once judgment is given by the Court.